Wadsworth and Gale
[2009] FMCAfam 537
•5 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WADSWORTH & GALE | [2009] FMCAfam 537 |
| FAMILY LAW – Parenting – interim hearing – relocation – alleged contravention of consent orders – child attending two different schools – duress – acquiescence to relocation – contravention application dismissed – relocation allowed. |
| Family Law Act 1975, Part VII, ss.60B, 60CC, 61DA, 65DAA |
| Barton v Armstrong [1976] AC 104 Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 Earl of Chesterfield v Janssen (1751) 28 ER 82 Goode v Goode (2007) 36 Fam LR 422 Keach & Keach (2007) FLC ¶93-353 Morgan v Miles (2008) 38 Fam LR 275 SH & DH (2003) FLC ¶93-164 |
| Applicant: | MS WADSWORTH |
| Respondent: | MR GALE |
| File Number: | CAC 279 of 2009 |
| Judgment of: | Neville FM |
| Hearing date: | 7 May 2009 |
| Date of Last Submission: | 7 May 2009 |
| Delivered at: | Canberra |
| Delivered on: | 5 June 2009 |
REPRESENTATION
| Advocate for the Applicant: | Ms Burgess |
| Solicitors for the Applicant: | Legal Aid ACT |
| Advocate for the Respondent: | Ms Naidoo |
| Solicitors for the Respondent: | Patrick Black & Associates |
ORDERS
That the Contravention Application filed by the father in the [T] Local Court on 5 February 2009 be dismissed.
That the parties have equal shared parental responsibility for the child [X] born in 2004.
That the child live with the mother.
That the child spend time with the father as follows:
(a)Every second weekend from 5:00pm on Friday until 6:00pm on Sunday;
(b)For ten days in each school term holiday period; and
(c)For four weeks in the Christmas school holiday period.
That the child may communicate with the father by telephone on at least one occasion per week as agreed between the parties.
That changeovers are to occur at a place to be agreed between the parties.
That the mother is to undergo no more than three random urinalysis tests for non-prescription and illicit drugs within 24 hours of receipt of such a request from the father’s solicitor. The results of the testing are to be made available within 7 days of receipt.
That the mother is restrained from changing the child’s residence outside of the Australian Capital Territory without the father’s prior written consent or an order of the Court.
That the matter be adjourned to 23 September 2009 at 10:30am.
IT IS NOTED that publication of this judgment under the pseudonym Wadsworth & Gale is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 279 of 2009
| MS WADSWORTH |
Applicant
And
| MR GALE |
Respondent
REASONS FOR JUDGMENT
A. Introduction
There are three preliminary issues that should be dealt with at the outset. Once those issues are resolved, in large measure the parenting orders that should be made in relation to 5-year-old [X], to a significant degree, will resolve themselves.
The three issues relate to (i) whether or not the Consent Orders that were signed by the parties and filed with the Local Court at [T] on 28 June 2007 were executed by the applicant Mother (Ms Wadsworth) under duress; (ii) whether or not the respondent Father (Mr Gale) has acquiesced over a period of time (and with knowledge) in
Ms Wadsworth’s relocation from [T] to Canberra [[T] is approximately 200 kilometres from Canberra]; and (iii) in relation to the Contravention Application brought by Mr Gale, whether Ms Wadsworth had reasonable excuse, in the light of the determination of the issues dealt with under (ii), in not complying with the 2007 Consent Orders.
B. Duress
The fundamental notion of the legal concept of ‘duress’ – whether at common law, equity or indeed in family law proceedings (either in relation to children or property) - has as its fundamental notion that a person’s will is overborne to a sufficient degree that it is considered, according to law, as unconscionable and therefore relief will be provided.
There is a long history to such matters. The following are simply examples. When he was on the New South Wales Court of Appeal, in Crescendo Management Pty Ltd v Westpac Banking Corporation, McHugh JA referred to situations where “pressure would be illegitimate if it consists of unlawful threats, or amounts to unconscionable conduct.” His Honour went on to note – and importantly so – that “the categories [of unconscionable conduct] are not closed.”[1]
[1] Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 at pp 45-46. See also both the majority and dissenting advices in Barton v Armstrong [1976] AC 104 (Lord Cross, for the majority, at p.118; Lord Wilberforce and Lord Simon of Glaisdale, in the minority, at p.121).
McHugh JA’s statement in relation to duress in Crescendo Management was applied by Ryan FM in SH & DH.[2]
[2] (2003) FLC ¶93-164 at [60].
To a significant degree, the historical, legal foundation that underpins the concept of “duress”, and its jurisprudential relationship with “fraud”, dates from Lord Hardwick LC’s judgment in Earl of Chesterfield v Janssen,[3] where the Lord Chancellor said that a Court will intervene “… to prevent taking surreptitious advantage of the weakness or necessity of another: which knowingly to do is equally against the conscience as to take advantage of his [or her] ignorance ….”[4]
[3] (1751) 28 ER 82.
[4] (1751) 28 ER at p.100.
Although the Lord Chancellor was speaking essentially of commercial matters in which a court will intervene, his basal principle regarding ‘unconscionability’ remains a fundamental touchstone for judicial intervention in all agreements, whether they concern commercial arrangements or parenting orders in relation to children.
The alleged duress in this case arises from a situation where (on the Mother’s evidence) [X] was injured in an accident in the kitchen while in her care – hot liquid split on her arm and [X] suffered significant burns. It would appear that following this incident in particular,
Mr Gale threatened to take action against Ms Wadsworth to remove [X] from her care.
In the circumstances, and at this early stage of the proceedings, it seems to me that it would be imprudent to make any finding either about the incident to which I have referred that led to [X]’s injury, and equally in relation to any formal finding about the Consent Orders being entered into under duress. There are not unreasonable arguments on both sides to support the competing contentions, namely that there was no duress, and on the other side that there was.
Any findings or determination of such an important matter should and must be left to the final hearing.
C. Acquiescence
This aspect may be considered and determined with greater confidence on the documentary evidence before the Court.
Ms Wadsworth contends that she had indicated for some time to
Mr Gale of her intention to relocate to Canberra. She also contends that Mr Gale was aware that for some time she was spending significant amounts of time in Canberra in any event. She also says – and there seems little dispute about this – that she moved to Canberra in November 2007.
It was not until towards the end of April 2008 that Mr Gale caused a letter to be sent to Ms Wadsworth expressing concern about her move to the national capital from [T].
On 6th May 2008, Ms Wadsworth’s solicitor wrote to Mr Gale’s attorney confirming that (a) they acted for Ms Wadsworth and (b) she had informed the Father of her move some time ago. In that same letter, Ms Wadsworth’s solicitor also invited Mr Gale to undertake mediation with a view to resolving the matter via that means rather than by litigation.
Mr Gale contends that his then solicitors sought mediation in November 2008, but that nothing had in fact happened in that regard. Unfortunately, there is nothing to confirm this version of events. In fact, the documentary evidence supports the view that nothing was done between 6th May 2008 and 5th February 2009 when Mr Gale filed a Contravention Application in the Local Court at [T] regarding the failure by Ms Wadsworth to comply with the Consent Orders of 2007. At the very least, it was a curious – and seemingly the only - response to the earlier letter of 6th May 2008 inviting the parties to undertake mediation.
I should also note that there was no explanation or other indication from Mr Gale as to how or why there was nothing from his former solicitors to support his contention that there was a reply from them to Ms Wadsworth’s solicitors in November 2008.
On these relatively clear facts, and in the absence of any supporting evidence from Mr Gale, either as to the suggested mediation in November 2008, or otherwise, it seems to me that the ground of acquiescence has been made out quite clearly. Mr Gale has known of Ms Wadsworth’s intention to move to Canberra, and that she moved in November 2007. Nothing was done to challenge her in this regard until the contravention application in February 2009. In my view, he has delayed too long in making his complaint in this regard.
Because that ground has been made out, it necessarily follows that the Contravention Application cannot succeed for the simple reason that, with knowledge and by the lapse of time, Mr Gale has allowed
Ms Wadsworth effectively to settle in Canberra. The Contravention Application filed 5 February 2009 in the Local Court at [T] must be dismissed.
D. Parenting orders
Accepting that the due processes of this Court in relation to parenting orders are clearly defined in Part VII of the Family Law Act, and by the now regularly acknowledged regular authority of the Full Court in Goode & Goode,[5] the following may suffice by way of consideration of matters relevant to interim parenting orders for [X].
[5] (2007) 36 Fam LR 422 - and subsequent cases such as Keach & Keach (2007) FLC ¶93-353.
The Act and judicial authority require the Court to consider the operation of the presumption in section 61DA. In the absence of any evidence to the contrary, in interim proceedings such as these, the presumption should operate. Therefore there will be an order for equal shared parental responsibility between Mr Gale and Ms Wadsworth in relation to their daughter [X]. It may be, of course, that after a family report (which is scheduled for 1st September 2009), as a matter of practicality and or other things, equal shared parental responsibility may have to be revisited.
In terms of the primary and secondary considerations in ss.60B and 60CC, as with almost all matters, there is so little material upon which the Court could make any determination, and certainly until there is a family report, that it would be unsafe and imprudent to make any findings at such an early stage of the proceedings.
However, it is clear that [X] has been spending time with her Father on a reasonably regular basis. Moreover, because the Mother seeks orders which include regular time for [X] to spend with her Father, I take it that there are no issues regarding either [X]’s safety or Mr Gale’s capacity to care for and to provide for the needs of [X] while ever she is in his care.
I note too that for some time, [X] has in effect been commuting between Canberra and [T]. This occurred until I made orders in April this year, whereby her attendance at two separate schools stopped. The orders of April 2009 provided for [X] to attend school solely in the ACT and therefore not to commute between the national capital and her school in [T] on a week about basis. Since those orders at least, [X] has been living with her Mother in Canberra.
In my view the proposal of Ms Wadsworth in relation to the time that [X] spends with her Father is both reasonable and practicable. Because of the geographical location of the parties, I do not see that section 65DAA has any effect. I am satisfied that [X] will continue to have a meaningful relationship with her Father under the proposal put forward by Ms Wadsworth. It will, of course, be incumbent on both parents to promote actively [X]’s relationship with the other parent. This is especially important for Ms Wadsworth to ensure that she actively encourages [X]’s relationship with her Father. This must include regular telephone contact between [X] and her Father.
In the limited affidavit material filed so far, both parties raise issues concerning the Mother’s use of drugs. The Mother says that she stopped using drugs in 2004, following the death of her brother from an overdose. Mr Gale contends that there is still the influence of drugs, and perhaps also alcohol. In such circumstances, for more abundant caution, there will be a further order whereby Ms Wadsworth is to undergo three random drug tests between now and the matter coming back before the Court in late September.
E. Relocation issues
Prior to the hearing, I asked the parties to be prepared to argue whether or not the action of Ms Wadsworth constituted a unilateral relocation, and therefore offended the principles set out in Boland J’s judgment in Morgan & Miles.[6] In referring to that judgment I specifically drew attention to the Court’s responsibility to attend to what Boland J described, at [74], as “the careful exercise of discretion to determine the appropriate order to be made.” Her Honour went on to state, at [75] and [77]:[7]
It is clear that if a parenting order for equal shared parental responsibility has been made prior to any parenting application involving a relocation, the parties have a primary duty under s 65DAC to determine jointly if proposed living arrangements for a child would make it significant more difficult for that child to spend time with the “left behind” parent.
… The requirements of s 65DAC, properly observed, therefore require parents to consult and make a genuine effort to agree about a move which would make it significantly more difficult for the child to spend time with the “left behind” parent. The operation of s 65DAC, when applicable, clearly precludes a unilateral move by one parent without notice and consultation with the other parent.
[6] (2008) 38 Fam LR 275.
[7] See also Boland J’s extensive further discussion of steps to be considered in relocation cases, Morgan v Miles (2008) 38 Fam LR 275 at p.290 [79].
However, for the reasons already outlined, the concerns of Boland J in Morgan & Miles have been, in effect, superseded by the acquiescence of Mr Gale over a period of time in Ms Wadsworth moving to Canberra and taking little or no action to challenge her action.
And, given the history of the matter, for more abundant caution I will order that Ms Wadsworth is not to move [again] from Canberra with [X] without an order of the Court or written consent from Mr Gale.
F. Conclusion
For the above reasons, the orders to be made, which I consider to be in [X]’s best interests, on an interim basis, are as set out in
Ms Wadsworth’s application. In addition, as I have indicated,
Mr Gale’s contravention application must be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: J. Curtis
Date: 5 June 2009